1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GEORGE JARVIS AUSTIN, Case No. 21-cv-02637-HSG

8 Plaintiff, ORDER GRANTING DEFENDANT'S

MOTION TO DISMISS AND DENYING

9 v. PLAINTIFF’S MOTIONS FOR

JUDGMENT IN HIS FAVOR

10 INTERNAL REVENUE SERVICE (IRS) ET. AL., Re: Dkt. No. 68, 69, 73 11 Defendant. 12 13 Pending before the court are three motions. First and second are Plaintiff’s motions for 14 judgment in his favor, Dkt. Nos. 68, 73, to which Defendant has filed a single opposition, Dkt. No. 15 70. Third is Defendant’s motion to dismiss, Dkt. No. 69, to which Plaintiff has filed an 16 opposition, Dkt. Nos. 71 and 72. The Court finds this matter appropriate for disposition without 17 oral argument and the matter is deemed submitted. See Civil L.R. 7-1(b). For the reasons 18 discussed below, the Court DENIES Plaintiff’s motions for judgment in his favor and GRANTS 19 WITH LEAVE TO AMEND Defendant’s motion to dismiss. 20 I. BACKGROUND 21 In his second amended complaint, filed on March 2, 2022, Plaintiff alleges that the IRS has 22 failed to pay his 2019 tax refund of $6,160 and that he has not received the $1,400 stimulus 23 payment he should have been paid in 2021. See Dkt. No. 63 at 4-6. Regarding the 2019 tax 24 refund, Plaintiff asserts that he properly filed his tax return and has met all administrative claim 25 requirements. See id. at 4. Regarding the 2021 stimulus payment, Plaintiff alleges that he 26 contacted the IRS about the missing payment via phone and in writing. Id. at 7. Plaintiff also 27 asserts that he mailed a “Demand Letter” to the IRS regarding “the still unreceived stimulus 1 one).” Id. at 7. 2 II. LEGAL STANDARD 3 A defendant may move for dismissal on grounds that the court lacks subject matter 4 jurisdiction over the action. Fed. R. Civ. P. 12(b)(1). It is the plaintiff’s burden to establish 5 subject matter jurisdiction. See Ass’n of Am. Med. Colls. v. U.S., 217 F.3d 770, 778-79 (9th Cir. 6 2000); Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 376-78 (1994). In establishing a 7 federal court’s subject-matter jurisdiction, “[t]he plaintiff must allege facts, not mere legal 8 conclusions, in compliance with the pleading standards established by Bell Atlantic Corp. v. 9 Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).” Leite v. Crane Co., 10 749 F.3d 1117, 1121 (9th Cir. 2014). “A Rule 12(b)(1) jurisdictional attack may be facial or 11 factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. 12 Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). A facial attack “asserts that the allegations contained 13 in a complaint are insufficient on their face to invoke federal jurisdiction.” Id. A factual attack 14 “disputes the truth of the allegations that, by themselves, would otherwise invoke federal 15 jurisdiction.” Safe Air for Everyone, 373 F.3d at 1039. 16 A defendant may also move for dismissal on grounds that the plaintiff has failed to state a 17 claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). Under 18 Federal Rule of Civil Procedure 8(a), a plaintiff’s complaint must contain “a short and plain 19 statement of the claim showing that the pleader is entitled to relief[.]” “Dismissal under Rule 20 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts 21 to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 22 1104 (9th Cir. 2008). To survive a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to 23 state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 24 (2007). A claim is facially plausible when a plaintiff pleads “factual content that allows the court 25 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft 26 v. Iqbal, 556 U.S. 662, 678 (2009). 27 In reviewing the plausibility of a complaint, courts “accept factual allegations in the 1 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nonetheless, 2 Courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of 3 fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 4 2008). 5 “Pleadings must be construed so as to do justice.” Fed. R. Civ. P. 8(e). For that reason, “a 6 pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal 7 pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotations marks and 8 citations omitted). If dismissal is still appropriate, a court “should grant leave to amend even if no 9 request to amend the pleading was made, unless it determines that the pleading could not possibly 10 be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) 11 (quotation marks and citation omitted). Where leave to amend is appropriate, “before dismissing a 12 pro se complaint the district court must provide the litigant with notice of the deficiencies in his 13 complaint in order to ensure that the litigant uses the opportunity to amend effectively.” Ferdik v. 14 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). 15 III. DISCUSSION 16 A. Plaintiff’s Motion for Judgment in His Favor 17 Plaintiff argues that the Court should enter judgment in his favor because “Defendant has 18 not presented any effective defense as to Plaintiff’s allegations of unpaid refund, and stimulus by 19 Defendant, and their subsequent cognizable harms.” Dkt. No. 68 at 2, Dkt. No. 73 at 2. Plaintiff 20 styles both his motions as “Motion[s] for Judgment for Plaintiff,” Dkt. No. 68 at 2, Dkt. No. 73 at 21 2, and the two are substantially similar. Because discovery has not yet commenced and Plaintiff 22 argues that “Defendant has not presented any effective defense as to Plaintiff’s allegations,” Dkt. 23 No. 68 at 2, Dkt. No. 73 at 2, the Court construes Plaintiff’s motion as a motion for judgment on 24 the pleadings under Federal Rule of Civil Procedure 12(c). FRCP 12(c) allows a party to move for 25 judgment on the pleadings “[a]fter the pleadings are closed—but early enough not to delay trial.” 26 Fourteen days after Plaintiff filed his second amended complaint, Defendant filed a motion 27 to dismiss Plaintiff’s claim regarding the 2021 stimulus payment. See Dkt. No. 69. Other than the 1 amended complaint. “Although it is unclear from the language of Rule 12(a) whether service of a 2 Rule 12(b) motion directed at only parts of a pleading extends the time for answering the 3 uncontested parts of the pleading, ‘the weight of the limited authority on this point is to the effect 4 that the filing of a motion that only addresses part of a complaint suspends the time to respond to 5 the entire complaint, not just to the claims that are the subject of the motion.’” Dillingham v. 6 Garcia, Case No. 1:18-cv-00579-LGO-EPG-PC, 2019 WL 6618055, at *8 (E.D. Cal. Dec. 5, 7 2019) (citing 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1346 8 (3d ed. 2019)). The Court agrees with Defendant that its time to file an answer is tolled pending 9 the Court’s decision on its motion to dismiss. 10 Because the pleadings in this case have not yet closed, Plaintiff’s motions for judgment are 11 premature, and the Court DENIES them. 12 B. Defendant’s Motion to Dismiss 13 Defendant moves to dismiss Plaintiff’s claim related to the $1,400 stimulus payment on the 14 grounds that Plaintiff has not established a waiver of the United States’ sovereign immunity and 15 the Court therefore lacks jurisdiction. Dkt. No. 69 at 1. As the Court has previously explained, 16 “[i]t is well settled that the United States is a sovereign, and, as such, is immune from suit unless it 17 has expressly waived such immunity and consented to be sued.” Gilbert v. DaGrossa, 756 F.2d 18 1455, 1458 (9th Cir. 1985); see Dkt. No. 57 at 3-7. Such waiver must be unequivocally expressed, 19 and “is to be strictly construed, in terms of its scope, in favor of the sovereign.” Dunn & Black, 20 P.S. v. U.S., 492 F.3d 1084, 1088 (9th Cir. 2007) (citation omitted). “The waiver of sovereign 21 immunity is a prerequisite to federal-court jurisdiction.” Tobar v. U.S., 639 F.3d 1191, 1195 (9th 22 Cir. 2011). If a plaintiff cannot establish that its action against the United States falls within a 23 waiver of sovereign immunity, the action must be dismissed. See Dunn & Black, 492 F.3d at 24 1088. 25 Congress has waived the United States’ sovereign immunity with respect to civil actions 26 seeking a refund or credit on overpaid taxes, but individuals bringing such suits must meet a 27 number of requirements, including: or illegally assessed or collected, or of any penalty claimed to have 1 been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for 2 refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the 3 Secretary established in pursuance thereof.” 4 26 U.S.C. § 7422(a); see 28 U.S.C. § 1346(a)(1); see also Imperial Plan, Inc. v. United States, 95 5 F.3d 25, 26 (9th Cir. 1996). An individual cannot bring a suit for the recovery of any internal 6 revenue tax under § 7422(a) until six months after filing the administrative claim. 26 U.S.C. § 7 6532. 8 In March 2021, Congress Enacted the American Rescue Plan Act of 2021 (“ARPA”), 26 9 U.S.C. § 6428B. Under the ARPA, eligible individuals were provided an advance refund of tax 10 credits of up to $1,400, colloquially known as “stimulus payments.” 26 U.S.C. § 6428B(b). The 11 IRS estimated the tax credit for each taxpayer based on past filings and prepaid that amount. See 12 id. 6428B(g)(2). Taxpayers who did not receive an advance tax credit despite being eligible could 13 receive it by filing a tax return. See Griffin v. United States, Case No. 21-2307T, 2022 WL 14 1101817, at *2 (Fed. Cl. April 13, 2022). 15 Plaintiff alleges that he was owed a $1,400 “stimulus payment” and did not receive one. 16 Dkt. No. 63 at 7. Although it has a different colloquial name, his claim is a tax refund claim. See 17 Griffin, 2022 WL 1101817, at *2-5. As such, Plaintiff must allege that he filed the necessary 18 administrative claim with the IRS and complied with the timing requirements. Plaintiff alleges he 19 contacted the IRS “via phone” and “in writing” and that he mailed them a “Demand Letter.” Dkt. 20 No. 163 at 7. However, Plaintiff does not provide further detail regarding the substance of the 21 claims he submitted to the IRS or when he submitted them. Additionally, Defendant compellingly 22 points out that the earliest Plaintiff could have filed a proper administrative claim “would have 23 been to claim a stimulus payment on his 2021 tax return, and it is thus impossible that six months 24 could have expired from the filing of this claim to the filing of his amended complaint on March 2, 25 2022.” Dkt. No. 69 at 4. 26 Accordingly, the Court finds that Plaintiff has not plausibly alleged that he meets the 27 1 requirements for the Congressionally provided waiver of sovereign immunity. ! 2 || IV. CONCLUSION 3 The Court DENIES Plaintiff's motions for judgment in his favor and GRANTS WITH 4 |} LEAVE TO AMEND Defendant’s motion to dismiss Plaintiff's stimulus payment claim. Should 5 Plaintiff wish to amend his complaint, he must do so by filing a new complaint by September 16, 6 || 2022. If Plaintiff does not file an amended complaint by that date, the Court may dismiss the 7 stimulus payment claim with prejudice without further notice. Plaintiff is reminded that he must 8 || plead specific and particular facts to support his claims, including explaining how he satisfied the 9 six-month requirement of 26 U.S.C. $6542 before filing this claim, and that the United States, not 10 || the IRS, is the proper defendant to name for any claims brought under 26 U.S.C. § 7422. 11 The Court advises Plaintiff that the Legal Help Center at both the San Francisco and 12 || Oakland Federal Courthouses provides free information and limited-scope legal advice to pro se 13 litigants in civil cases. Services are provided by appointment only. An appointment may be 14 scheduled by either: (1) signing up in the appointment book located outside the door of the Legal 15 Help Center in San Francisco or Oakland, or (2) calling (415) 782-8982 or emailing a 16 || federalprobonoproject@ sfbar.org.

IT IS SO ORDERED.

|| Datea: August 19, 2022 Aiterpurerd 3, Ad).

HAYWOOD S. GILLIAM, JR.

20 United States District Judge 21 22 23 24 25 26 27 ' The Court also notes that the proper defendant in this case is the United States, and not the IRS. 2g || Plaintiff's claim seeks relief under 26 U.S.C. § 7422, which specifies that a refund suit “may be maintained only against the United States.” 26 U.S.C. § 7422(f)(1).